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S P E E C II 



OF 



ICHARD H. BAYARD, 



OF DELAWARE^ 



ON 



MR. BENTOn's motion to expunge FROxM the journal of Xili2 SENATE 



The Resolution of March 28th, 1834. 



DELIVERED IN THE SENATE OF THE UNITED STATES JANUARY I6j 1837' 



Wilmington r 

Printed by R, and J. B. Porter, No. 97, Market Street. 
1837 



-i— / \ \ 






SPEECH. 

Mr. BAYARD said that, notwithstanding he had not before had an op- 
portunity of expressing his opinion on the euhject now under discussion, yet he 
should have been unwilling at this late hour to have trespassed on the time and 
attention of the Senate, had he not felt it to be a duty which he owed to him- 
self and to his imvnediate constituents, to contend and protest against a meas- 
ure which he believed to be a violation of the Constitution. I say, sir, consti- 
tuents, for, in ray theory of this Government, we are all the representatives of 
the People, though chosen after a different nr>anner. Every infraction of the 
Constitution, however unimportant it may appear in its immediate consequen- 
ces, tends to diminish the general confidence in the stability of our Govern- 
ment, and the general attachment to it; and as the People of the State I have 
the honor in part to represent are devotedly attached to that instrument, and 
feel .that their political existence is incorporated with it, that in it they live, and 
move, and have their being as a political community, 1 say, sir, it is a duty 
which I owe to them to contend to the uttermost of my ability against whatever 
thus incidentally affects them. It is a duty, too, which I owe to myself, as I 
have a personal interest in whatever affects the character and honor of this 
body, of which I am an humble member. 

I have no intention, Mr. President, to inquire into the motives which may 
lead gentlemen to the adoption of this resolution. The motives of every man 
are his individual property; and as his action here, in relation to this matter, is 
under the sanction of an oath, they involve a responsibility only to his con- 
science and his God. I cannot say, sir, that the act which is now required to 
be done is a sacrifice to the Moloch of party spirit. I cannot say that it is a 
homage to an idol resembling that which the Chinese pays to \\U household 
god when he burns before it a little piece of gilt paper as the humble offering o( 
his piety and adoration. Nor can 1 say, sir, that it is intended to smooth the 
mane and calm the roar of the lion. All these views belong to the class of mo- 
tives with which I have nothing to do. But, sir, I have something to say and 
something to do with the doctrines advanced and the acts done here, which be- 
come part of the common stock. If it Sf ems from the )io/ioe of tlie act done, 
and from the insufficiency of the reasons given for it, to be an act of homage al 
the footstool of executive power, 1 have, then a personal interest in tiie mattei' 
which not only justifies my doing so, but makes it a matter of duty to express 
my opinions as well as to record my vote. And, sir, it becomes the more ne- 
cessary and proper to express those opinions, since, if this principle of expunc- 
tion be adopted, I have no security that the record of that vote may not be de- 
stroyed, if hereafter it should become expedient to give to the resolution tlie 
appearance of unanimous approbation. 

What is it, sir, we are called upon to do? A man may do wrong unwitting- 
ly, and we must take care to have a clear and precise idea cf the act to be 
done. In toords, sir, we are called upon to expunge from the journal a certain 
resolution, but in fact and in truth to falsify a record. The same mind which 
might contemplate the one proposition with indifference, would regard the oth- 
er with horror. To a miudreckless of consequences, which hasnofiturc., which 
looks only to the present, and views every act as an insulated event, having no 



1 .' . »..i h r preceded, and no influence on whatis ioM\o^y,io expynge 
relation to what ha. P^eceueu a ^ ^ ^^ g^g^ such a mind 

from a journ<il may seem ^ ^^^'^-^'^^^'^^^^^^^^^^^ same measure when it impoit- 
might be brought to '^voU v Uh ^'^n^^^ ' ° -^^ ^f , falsehood. The approach- 
ed the suppression of the t\"^J;'";^V^^,^'?^f;3\,s^,,sin wears his mask; vice pays 
es of crime are stealthvand "^^^j^ '^"^' ^^i^e ^nave puts on the cloak of re- 
to virtue the homage ^[^''^'l'^,''^^^^^^^^ It becomes, then, mj 

ligion^thedemagc^uebecom h n^^ 

purpose to show that to expwi^t "W"" ^ J ^ -' ^ ^^^g resolution, 

' I^et me no« draw the =;; «,) -"„ fd^ne an 1 tL «».on» for doing it. A„< 
{ir*:ir;;tett:.s:?r:"ins described i„ these te,.„,s: 



Nothing can be more explicit in its te. m • A e ac t« _ ^^^ p^^^.^ 

The first member of the f^tence conveys t^ie ^^'^^'^J^^' ^ should tak 

had stopped there with t^ie simple -^ --, f .^J^f^f L,e been authorize 

r,rt ;L" i ? re'„Tera'nd"S:ncU.des thit because the .or -y ^e «sed n,e 
^pbc-ic^ally, it is in. tbis ^^^^^Z^^ttS^i berutfand^'rce oH. 
literal 01- metaphoncal, .t •"\P°''"/f ''X „' "jjc „,eauinK oVits literal acce; 

^tS?"'rh^sen^s:^'Ht:raii:;n^^ 

w'll dene 1.1 on the subject-matter to which it is app led. 1 bus, in some 
; n tance gWen by the Senator from Pennsylvania, as he one -to e 
c >"sxancch to j metanhorically; but does not tl 



the instances civen by the Senator irom reinibvivaii.a, uo ...^ ^..^ ^- ~ 
pun^e ou"4is^ no dLbt the word is used metaphorically; but does not t 
Cte force and value of the expression depend on its I; -^,' .---"fj -;^ '^ 
port that those sins shall cease to have a moral existence as loasons ot the IJ 
?ino >^^nVeance? And when used as applicable to a section ot a bill, which 
anothrSnce given by the Senator, does it not mean that such section sh: 

'^ tL' Serato:tt; wfe a resolution passed that a section of a bill si. 

b« expunged, the Secretary would proceed to obhtera e it? I ^"^jr that fro 
the metliod of our proceedings it is not necessary for h.m to erase every AvO. 
because the purpose is effectually answered by drawing his ^'jL'^k lines aero 
it, or simply wHting upon its face the word expunged, or in effect t becom 
so, by ceasing to have iny legal existence: and it such bill were ordered to 
engrossed for a third reading, the section thus expunged would be omitted 
the engrossment, as if it had never existed. But the authority conferred u pi 
him b/such a resolution is literally to erase every word of the section Sue 
also, is the case when the word is used in relation to a part of the journal, a, 
it becomes his duty to blot.out or.obliterate from its face the P=^f ^§f ^^d^red 
be exnuno-cd. But it is said that the present resolution does not.con emplate . 
actual expunction or obliteration ot the passage, but merely a typical one A. 
Senators seek to reconcile themselves to this measure by such a plaj up( 



words. A typical expunction! To get rid of the sophistry" at once, let me 
ask whether a journal is not the evidence of a fact, as, for instance, the pas- 
sage of a particular resolution, and whether to expunge from the journal that 
resoltion is not to destroy the evidence of the fact that such a resolution had 
been adopted? If, then, you have the right to expunge, and do actually declare 
that a passage shall be expunged, does it not for all legal purposes suppress the 
evidence of the fact, no matter what the manner of expunction may be, wheth- 
er by erasing, by blotting out, or by writing the word expunged over its face? 
Could the Secretary certify, after the adoption of the expunging resolution, 
that such a passage existed on the journal? If he were called upon to publish a 
new edition of the journal, would he have a right to insert the passage expun- 
ged? It is in vain that the assertion is made that the printed volumes would be 
evidence of the fact. The printed volumes aie only ^rimayrtc/e evidence, and 
admitted for convenience, but could never stand against a sworn copy of the 
journal. There is, then, for all the purposes for which a journal is kept, name- 
ly, as evidence of a particular transaction, no difference between an actual and 
a typical expunction. That in the present instance no grave and immedi- 
ate consequences affecting individual rights' is to follow, does not alter the 
case. The principle asserted in the resolution is, that the rigiit to expunge 
exists, the mode of doing it is of no consequence^ and I will show presently, 
thattlie exercise of such a power is not only unconstitutional, but may be at- 
tended with the most important and direct influence on the personal rights of 
individuals. The natural import and the necessary legal effect of the phrase 
" expunged from the journal," is to destroy the evidence of the fact expunged 
whether it be used literally or metaphorically. 

Having thus ascertained the meaning of the word expunge, and the effect of 
any mode of expunction, tiie question arises whetherthe Senate possess any 
sucii power over its journals. Has it tiie right to destroy the evidence of a 
particular transaction, for the journal is not only the higiiest evidence, but the 
only evidence of the fact? A journal is a daily record as contradistinguished 
from a temporary memorandum. Rut it is contended that though a record, it 
is not a permanent one, being of value only until it is published ; after which, 
it becomes mere waste paper. Is this proposition true? For if it be, then so 
far as this particular case is concerned, there is an end of the question. — 
The language of the Constitution is "that each House shall keep a journal of 
its proceedings, and, from time to time, publish the same." Resort has 
been had to the meaning of the word keep, as importing preservation, to show 
that the Constitution contemplated a permanent, and not a temporary record. 
But 1 admit that the word keep does not necessarily imply permanent preser- 
vation ; it may mean preservation for a temporary purpose. The word keep, 
like every other word in the language, must depend for its meaning on the 
manner in which it is used, on the subject-matter to which it is applied. — 
Words are but the signs of ideas, and it is one of the imperfections of language 
that it often expresses too much or too little, while felicity in its use consitsin 
the choice of those terms which convey either the simple or complex idea with 
precision. A word, too, may stand for a whole sentence, for a class of ideas, 
as in tlie familiar use of this very term. Thus, to keep a horse may not merely 
mean that he is fed, and curried, and siabled, but that he is rode j as, where 
the conversation being about the personal habit of any one in relation to exer- 
cise, it should be remarked of him, he keeps a horse ; the term imports both 
preservation and use. So in the phrase keep a cow ; the use for which she 
is kept is implied, as if a house keeper were asked, "Do you buy your milk?" 
and should reply, " No, I keep a cow ;" it imports not only that slie is fed and 



taken care of, but that she is milked, and her milk coneumed by the family.— 
So, keep a carriage does not merely mean that a carriage is locked up in the 
house, but that it is used. Keep house, imports the burden of household du- 
ties ; as keep tavern imports the duty of receiving and attending to guests. — 
There cannot be a doubt that the phrase "keep a journal," means to make and 
preserve one. But still the question arises as to the length of that preserva- 
tion ; and it is contended that the subsequent injunction to publish indicates 
at once the purpose and length of preservation. Is this true.^ The words are 
keep and publish, not keep in order to publish. But waiving all verbal cri- 
ticism, let me remark that a constitution is merely a collection of principles j 
and in-order to ascertain the force and meaning of any term, it is necessary 
to attend ,to the object of the provision, and the principle connected with it. 
What then, sir, are the purposes for which a journal is to be kept ? I do not 
pretend to give them all, but some of them, as drawn from the Constitution 
itself; and it will then be seen whether such ^jwjyjoses are of a temporary or 
permanent character, and by consequence whether the journal is intended to 
be a permanent or temporary record. In the first place, it is intended to 
record the day on which a bill has been presented to the President for his appro- 
bation, and the day on which Congress adjourned, for on these two facts may 
depend the validity of a law. Thus, in the seventh section of the first article 
of the Constitution, it is provided ; 

"Every bill which shall have passed the House of Representatives and the 
Senate shall, before it become a law, be presented to the President of the Ig- 
nited States; if he approve, he shall sign it; but if not, he shall return it, with 
his objections, to the House in which it originated, &c. If any bill shall not 
be returned by the President within ten days (Sundays excepted) after it shall 
have been presented to him, the same shall become a law, in like manner as if 
he had signed it, unless the Congress, by their adjournment, prevent its return ; 
in which case it shall not be a law." 

Here is one permanent purpose as enduring as the law itself. 

In the second place, it is intended to record the fact of membership in this 
body, the Senate being the judge, and settling the question of membership in 
cases of contested election, by the express provision of the fifth section of the 
first article of the Constitution. And this was done in the case of the venera- 
ble and distinguished Senator from Rhode Island (Mr. Robbins.) Has not he, 
and has not his State, a permanent interest in that decision, and in the evidence 
of that fact? Suppose, sir, it should become expedient at any time to expunge 
such a decision, what would become of the rights of tlie Senator from Rhode 
Island, if a competitor were to present himself here for his seat, with fresh cre- 
dentials from his State? 

In the third place, it is intended to record the presence of a quorum at the 
opening of each session of Congress, as well as to ascertain the fact that Con- 
gress did assemble on the constitutional day of its meeting. The journal al- 
ways opens with a statement of the names of those who assembled: when it is 
once ascertained that a quorum is present, it is afterwards taken for granted 
that they perform their duty, and are always piesent, unless the contrary is 
made to appear. But if it so happened that no quorum was present, or that 
Congress had assembled before it nad a legal right to do so, the laws passed 
under such circumstances would be merely void, This certainly is a matter 
of permanent importance. 

In the fourth place, it is intended to record the action of this body on the 
conduct of its members, as in the instance of the punishment of any of them for 
disorderly behaviour. Suppose the case of the expulsion of a member, will not 



the right of the State from which he comes, to send a successor depend on the 
fact of expulsion? And could you, by expunging the resolution of expulsion, 
restore him to his seat? And yet, if you destroy the evidence of the expulsion, 
is there anything to invalidate his rights as established by his credentials 
when he first took his seat? Suppose he was elected for six years, and you ex- 
pel him at the expiration of the second, how would it be possible to contest his 
right to a seat for the remaining four years? 

In the fifth place, it is intended to ascertain the fact of your organization as 
a court of impeachment, and the judgment passed on the oftender. The judg- 
ment may extend to a removal from office, and a disqualification to hold and 
enjoy any office of honor, trust, or profit, which in its nature is perpetual, and 
is excepted out of the pardoning power which is j^iven to the President in all 
other cases. 

In the sixth and last place to which I mean to advert, it is intended to re- 
cord the votes of members on matters of moment, that they may be held to 
their responsibility for pernicious measures. And hence it is expressly pro- 
vided in the fifth section of the first article, "that the yeas and nays of the 
« members of either House on any question shall^ at the desire of one-fifth of 
♦ those present, be entered on the journal." Has not every individual a per- 
sonal and permanent interest in the record for good or for evil? This last pur- 
pose has reference to the great principle on which republican government is 
founded — the responsibility of the representative to his constituents. From a 
consideration, then, of the purposes for which a journal is to be kept, it is ap- 
parent that it is intended to be a permanent and not a temporary record. 
None of those purposes would be eftectually answered by the mere publication 
of the journal. They are matters of fact of which the journal, I mean the ma- 
nuscript journal, is the highest evidence, and the only evidence where recourse 
is had to it, for any legal purpose. To expunge this record is to destroy the 
evidence of a factj to falsify history, and verify the remark of the satirical 
Frenchman, that history is nothing but conventiouable fables. Let me add, in 
relation to this matter, that the suppressio veri differs nothing in point of mor- 
ality from the allegalio falsi, and that it would be as hard to maintain that you 
have a right to suppress the evidence of a fact which had occurred in your pro- 
ceedings, as to maintain that you have the right to assert a fact ^^upon your 
journal which never had any existence. But it has been contended by some 
that, because we have the custody of the journal, we have the right to do with 
it what we please. And does custody import the right of destruction? Will 
it be contended that the Secretary ot* State, who has the custody of your laws 
and treaties, and even of the Constitution itself, has, from that circumstance, 
the right to blot out sections from your laws, articles from your treaties, and 
paragraphs from your constitution? that he has the ri^ht to mutilate and de- 
stroy the records of the nation? In considering this right of expunctionj the 
question is not whether the substance of the resolution proposed to be expunged 
is true, but whether such a resolution \v!ls adopted; that is the point of history. 
The existence on the journal of the resolution is no evidence of the truth of its 
allegation, but simply of its adoption; and the future historian, looking to the 
whole transactions of the time, would decide upon the truth or error of its alle- 
gation without giving to it any greater weight than is due to the mere expres- 
sion of an opinion. Eveiy Senator who voted for the original resolution has a 
personal interest in the record. 

If it is true that to pass such a resolution was illegal and unconstitutional, 
ai d thatjflagrant wrong was done to the President of theUnited States, then his 
friends should hot desire to have it expunged, but on the contrary, to preserve 



8 

it as a monunient uf reproach to those wlio participated in the measure, lu thi^ 
view of the subject, it shoulci be preserved as a matter of satisfactiou on the 
part of his friends, and of disgrace and shame on the part ot his adversaries. 
And, on the other hand, if the right existed to pass tlie resolution, and its 
allegation was true in point of fact, those who sustained it by their vote have an 
interest in the evidence of their opinion, while those who thought otherwise 
have the benefit and satisfaction of being able to establish their dissent. In 
neither view of the case have the friends of the President any fair reason to 
desire that the evidence of the proceeding should be destroyed. The Senator 
from Missouri (Mr. Bkxton) may glory in the vote he gave on the occasion ; 
the Senator from Kentucky (Mr. Clay) may do the same ; neither has the right 
to deprive the other of the evidence of his course in relation to it. Those who 
voted for the resolution alone hazard any thing in preserving that evidence. If 
they were wrong, then it is for their shame ; if they were right, it is the mere 
expression of an opinion from which others might rightfully and sincerely dif- 
fer. If the allegation of the friends of the President is true, that the adop- 
tion of that resolution was a breach of the Constitution, and a most flagrant 
Avrong to him, would it not be more natural that the Senator from Kentucky 
(Mr. Clay) should come here and ask us to expunge it, that he might conceal 
his participation in the matter.^ Is it not extraordinary that the Senator froni 
Missouri, who takes great credit to himself for resisting the measure, should 
seek not only to conceal his own glory in opposing it, but the shame of his ad- 
versaries in supporting it.^ What is the purpose to be answered by expunging 
the resolution.'' The fact that such a resolution was adopted cannot now be 
concealed from the eye of history. The journal is oiily evidence of that fact, 
and not of the truth of the allegation contained in it. What valuable end, then 
istobe accomplished by theexpunction? I fear, sir, that the future historian, 
looking over the whole ground of the controversy, will say, from the nature of 
the act, that it was a sacrifice, a peace oft'ering at the altar of Executive pow- 
er. In this view, we have all an interest in the record of the proceedings of 
this day, for good or for evil report. 

But, Sir, 1 come now to consider the reasons which are offered for the adop- 
tion of this expunging resolution. They are set forth in the preamble, and 1 pre- 
sume they are the best that can be offered. They have been welt weighed and 
considered, and no doubt the ability of the Senator from Missouri has been tax- 
ed to the uttermost to present the casein the strongest possible point of view. 
His reasons are eight m number, and the first of them is in these words: 

" And whereas the said resolve was irregularly, illegally and unconslitutionally 
adopted by the Senate in violation of the rights of defence which belong to every 
citizen, and in subversion of the fundamental principles of law and justice: because 
President Jackson was thereby adjudged, and pronounced- to be guilty of an im- 
peachable offence, and a stigma placed upon him as a violator of his oath of of- 
fice and of the Laws and Constitution, which he was sworn to preserve, pro'ecl and 
defend, without going through the form of an impeachment, and without allowing 
to him the benefits of a tiial, cr means of defence." 

Is this true in point of fact.'' The proceeding of which this reason professes 
to be descriptive was this: On the 28th day of March, 1834, the Senate in 
its usual course of business, adopted the following resolution: 

"Resolved, That the President, in the late executive proceedings in relation to 
the revenue, has aussumed upon himself authority and power not conferred by the 
Constitution and Laws, but in derogation of both.'^ 

Is tliis first reason, llicn, a true description of the subject to which it refers^ 



if the Senate had organizeii ilsclf into a Coiuf of impeachment, called in the 
Chi^f Justice to ptPf^ide, as required by the Constitiitior, and tiien proceeded 
to try the President without hearincr him, and to pronounce judgment upon 
him, of removal from office, more could not have been said; no stronger lan- 
guage would be required to describe so wanton a violation of tlie constitutional 
law, fs there no difterence between the cases? Can a stronger case of the 
perversion and abuse of language be put than this, which would represent a 
simple resolution of a deliberative assembly, expressing an opinion which has 
no legal effect whatever on the rights of the individual, as tlie judgment of a 
court which acts directly and immediately upon those rights? The proceeding 
referred to has neither the form nor substance of a judgment. Nor is the slight- 
est guilt imputed in the opinion as expressed by tlic resolution. It states a 
fact, "that the President has assumed upon himself authority and power not 
conferred by the Constitution;'' but is silent as to the motives and intention 
with which that fact was accompanied, tiie corrupt and wilful character of which 
alone, could give to the proceeding the attribute ofguilt. But suppose, for a 
moment, that the Senate had, losing sight of the principles of law and justice, 
formed itself into a Court of Impeachment, and proceeded, without a hearing, 
to pass judgment on the individual: would that be a reason for expunging the 
record; for suppressing the evidence of so monstrous a proceeding? On the 
■contrary, sir, it should stand as a monument of disgrace and dishonor to th-e 
men who participated in it. Its legal effect would be nothing; its moral intiu- 
■ence would recoil on their own heads, and they should be held t© that respon- 
sibility to Public Opinion, to secure which, it was provided that the yeas and 
nays should be entered on the journal. In this view of the subject, the hollow- 
ness and fallacy of the reason assigned is manifested by the fact that those who 
seek to suppress the evidence are not those who advocated, but those who op- 
posed, the resolution. But, sir, it is the fate of a false position to embody the 
principles of its own destruction. If this reason be a true description of the 
resolution of 28th March, 1834, and sufficient for its expunction, is it not per- 
ceived that this very expunging resolution and its preamble is open to the same 
objection, as pronouncing judgment on those Senators v/ho supported the for- 
mer, as guilty of an impeachable offence and violators of their oaths of office^ 
without the benefit of a trial? It should, then, in its turn, be expunged; and if 
1 were called upon to draw up a preamble upon the strength of this precedent, 
I should use the same language, as being, as fair and legitimate a description of 
the present resolution and its preamble, as this reason is descriptive of the reso- 
lution of March 28, 1834. It is absolutely suicidal. 
The second reason is as follows : 

** And whereas the said resolve, in all its shapes and forms, was unfounded and 
erroneous in point of fact, and, therefore, unjust and unrighteous, as well as irreg- 
ular and unconstitutional, because the said President Jackson, neither in the act of 
dismissing Mr. Duane., nor in the appointment of Mr. Taney, as specified in the first 
form of the resolve; nor in taking upon hirnse'f the removing of the deposites, as 
specified in the second form of the same resolve; nor in any act which was then or 
can now be specified under the vague and ambiguous terms of the general denunci- 
ation contained in the third and hst form of the resolve, did do or commit any act 
in violation or in derogation of the laws and Constitution, or dangerous to the lib- 
erties of the People." 

The substance of this reason is, that the resolution was erroneous in point of 
fact. Is that a reason for expunging it? It might form a very good reason for a 
counter-resolution. The subject is one on which a difference of opinion might 
fairly exist, and that difference was expressed at the time, both in debate and 



10 

on the journal; but surely that difFercnce of opinion is no reason for destroying 
the evidence that such an opinion was expressed. 
The third reason is, that 

' " The said resolve, as adopted, is uncertain and ambiguous, containing nothing 
but a loose and floating charge for derogating from the laws and Constitutien, and 
assuming ungranted power and authority in the late executive proceedings in rela- 
tion to the public revenue, without specifying," &c. 

This reason conflicts with both the others, implying that, if the resolve were 
detailed and specific, it ought not to be expunged. It all these are reasons for 
the same act, they should not be antagonist to each other, but should harmo- 
niously tend to the same conclusion. But want of detail can be no reason for 
suppressing the evidence that such a resolution was adopted. 

The fourth reason is merely an amplification of the third. 

The fifth reason is as follows: 

" And whereas the Senate being the constitutional tribunal for the trial of the 
President, when charged by the House of Representatives with offences against the 
laws and Constitution, the adoption of the said resolve before any impeachment 
preferred by the House was a breach of the privileges of the House; a violation of 
the Constitution; a subversion of justice; a prejudication of a question which might 
legally come before the Senate; and a disqualification of that body to perform its 
constitutional duty with fairness and impartiality, if the President should thereaf- 
ter be regularly impeached by the House of Representatives for the same offence." 

The same answer may be given to this reason as is given to the first, that it 
is not a fair and true description of the case. It treats the resolution of 1834 
as if it were a judgment of the Senate in its judicial capacity as a court of im- 
peachment, when, in truth, it is nothing more than the expression of an opinion 
in its character of a deliberative assembly. It is no breach of the privileges of 
the House of Representatives, since it neither anticipates nor precludes an im- 
peachment. It is no prejudication of any question which might come before 
the Senate as a court of impeachment, since such question must be one of guilt, 
and nothing of the kind is imputed in the resolution. But again: if all this 
were true, it would be no reason for expunging, or in other words, destroying 
the evidence of the fact that such a resolution was adopted. 

But, sir, we come now to the sixth reason, which is perhaps the true motive, 
thouo-h not a justification for this extraordinary proceeding, and a gleam of light 
is thrown upon the subject, which gives it color and complexion. The sub- 
stance of this reason is, that the President's protest was rejected, and not per- 
mitted to be entered upon the journal, while memoiials and petitions against 
him were duly and honorably received. Here is another instance of that con- 
flict with other reasons, which was remarked upon in adverting to the third. — 
It implies that, if the protest had been received, then the resolve should 
not be expunged. But with that confusion of ideas which seems to character- 
ize the whole preample, it places the protest of the President on the same foot- 
ing with petitions from the people. The President demanded that his protest 
should be spread upon the journal, which he had no right to do. But, suppos- 
ing for a moment that he had, is the refusal a reason for expunging the resolu- 
tion to which the protest had reference? The People have an undoubted right 
to express their opinions and wishes, in the form of petitions and memorials, 
but the President, as such, has no right to notice the proceedings of any other 
branch of the Government in the form of a protest. It is no part of the func- 
tions or privileges of Executive power to review and rebuke the proceedings of 
the legislative or judicial branches of the Government. The aspect which the 
■whole subject assumes, in contemplating this reason, is that of retaliation. It 



11 

looks like ofteringaa iadiji,iilty to this body by way of compensating the slight 
of Executive power. 

The seventh and eiglith reasons may be chissed together, and resolve them- 
selves into the general allegation that the said resolve was inopportune, of evil 
example, and dangerous precedent. All of which, being a mere matter of o- 
pinion about which a fair diiterence might arise, could furnish no reason for ex- 
punging the resolve, however it might be urged as a reason for passing a coun- 
ter resolution. We have thus, sir gone through them all, and do not tind one 
which justifies the conclusion tiuit the resolution should be expunged. And if 
they do not singly support that conclusion, they cannot do it collectively. A 
thousand bad reasons have no more force than one. We may say, then, of 
this preamble, what was said of Gratiano's reasoning: " Gratiano speaks an in- 
' finite deal of nothing, more than any man in \\\[ Venicej his reasons are as two 
' grains of wheat hid in two bushels of chafl". you shall seek all day ere you find 
' them ; and when you have them they are not worth the search." 

But it is said the Senate had no right to pass such a resolution ; that it can- 
not be justified as the fair exercise of any one of its powers. Still it may be an- 
swered, it is a fact that such a resolution was adopted, and the objection in- 
volves a mere difference of opinion, which cannot be a reason for destroying the 
evidence of the fact. But as to the right itself, 1 think th^re can be no doubt of 
its existence, when the subject is fully understood. The Senate, under the 
Constitution, has various powers, legislative, judicial and executive. The er- 
ror lies in attempting to discover and explain the right to pass such a resolution 
in the exercise of any oH I hese powers. 

The object ofall these powers is the modification of some social or political 
right. But the Senate is a deliberalive body^ and, as such, must have opinions, 
and express them. It is the inherent right and property of every deliberative 
assembly to have and express opinions, which can only be done by resolution. 
A resolution of (hanks cannot be traced to any one of these powers, neither can 
a resolution of condolence.; and yet no one ever doubted the right, to pass either 
the one or the other. If it were necessary to resort to the Constitution for any 
express or implied authority, it might be found in the seventh section of the 
fourth article, which, in i's last paragraph, supposes that there are other reso- 
lutions than legislative acts, or sucli as require the concurrence of both houses. 
But the very institution of a deliberative assembly in the nature of things, sup- 
poses and involves the existence of opinions and the right of expressing them. 
The powers of such an assembly, or, in other words, the control which it may 
exercise overthe social or political rights of others, is a very different matter, 
and depends on the provisions of the Constitution which gives it existence. But 
is it not somewhat remarkable that tliose who made the objection do not per- 
ceive that this very expunging resolution which they advocate, presupposes the 
right.^ If the Senate has no rigiit to pass any resolution but such as can be tra- 
ced to one those powers, what right h ;sit to pass this expunging resolution? — 
Info such absurdities, sir, will men fall when they seek to sustain, by reasoning, 
a false position. The right, then, to pass such a resolution I take to be un- 
questionable, and the exercise of it may be, at times, highly expedient, as a 
check or caution to the wantonness or heedlessness of Executive power, and as 
a measu'-e short of impeachment. But sir, what is impeachment? A farce, a 
nullity I It is, like the case of the electoral colleges, an abortion. Tliere is 
little danger to be apprehended but from a popular President; and the very fact 
of his being such, under the party organisation of this country, supposes thefact 
that he is sustained and supported by a miijority of the body in whom the im- 
peaching power resides. I might heic, sir, ccuclude what I wished to say in 



12 

relation to tlie mattei- now depending before the Senate, having, as I think, 
established two propositions, which cover the whole ground: first, dial the Sen- 
ate, as a deliberative assembly, had the right to pass the resolution of March 
28, 1854, and secondly, that, whether true or not in point of fact, we have no 
right to expunge it, because the journal is, by the Constitution a permanent 
KEcoKo. I will further inridenl;allj remark that, if the 'ight of expunction ex- 
ists, and is to be established by tlvis precedent, then a subsequent Senate may 
expunge this expunging resolution; and so, in all time to come: these succes- 
sive expunctions may serve to indicate the triumph or defeat of the respective 
political paities of the country. But an attempt has been made to sustain this 
measure by a resort to precedents. Sir, precedents are of no authority when 
opposed to a clear,ascertained, settled principle. They are resorted to in doubt- 
ful cases, and often to avoid the force of principle. It is easier, at all times, to 
follow precedents than to reason. But, sir, above all things, precedents drawn 
from a period of revolution such as that referred to by the Senator from Vir- 
ginia (Mr. Rives) are of no weight in a time of profound tranquility, when secu- 
rity and leisure give opportunity for reflection. It may be very expedient, in 
a moment of unsettled government and of violence, to suppress the evidence of 
a particular proceeding: but one could scarcely rely upon such authority for a 
warrant to corrupt a constitutional record in moments of security and regular 
government. And yet such is the character of the Senator's domestic prece- 
dent. As to liis English precedents, they arc of no value on a question like 
this, whicii does not depend on general parliamentary practice, but on the ex- 
piess provisions of a written Constitution, which has directed the keeping of a 
journal, and contemplates tliat journal as a permanent record. 

]iut I am warned by the lateness of the hour that it is time to take leave of 
the subject; howeversir, before I take my seat, I cannot forbear toofterafew re- 
marks on some of tiie opinions and sentiments expressed by the Senator from 
Virginia (Mr. Rives) and others. We have been told by th;\t Senator that the 
Senate is an aristocratical feature of the Government; that it is the citadel of 
that aristocratic spirit which seeks to ride on the necks of tl>e people. What 
purpose, sir, is this sentiment to answer? Is it to break down the Senate? To 
bring it into contempt and odium with the people? But, first sir, let us inquire 
intoihefact. Ari-itocracy in Americal Where are its elements, where its 
means and appliances? llere, sir, wliere the wheel of fortune is perpetually 
revolvino; where the poor man of to day becomes the rich man of to morrowj 
and no one cin tell, whatever his present actual property, that his grandson 
may not be compelled to earn his bread by the sweat of his brow; where political 
rights are equal; and the avenues to wealth and honor open to every manj 
where the laws and customs of the country guard no man's inheritance in a set- 
tled course of descent, but break up and distribute in various rivulets, that 
wealth which may have been dammed up in the course of temporary accumula- 
tion, I say, sir, here, and under such circumstances, to talk of aristocracy is 
an insult to the common sense of the community. I see, sir, a practical refu- 
tation oi" this sentiment in the persons of the distinguished men by whom I am 
surrounded. To what patronage were they indebted for the honorable dis- 
tinction which they have attained? To what do they owe their elevation and 
the high consideration in which tliey are helil by the whole country but to the 
unoided elTorts of their own abilities? Wliy, sir, you find in the person of your 
Chief Magistrate another striking proof of its error. A poor boy, for so I be- 
lieve tiie story runs, cufted during the Revolutionary War by a British officer 
for not performing some menial oliicc, wins his way to the highest honors of 
the Republic, and comes to preside over the destinies of a great People: " bids 
the Romans mark him, and u rite Ids specchesin their books." Sir, the term is 



13 

a mere catch-vvoid, or louse tlie metaphor of the Senator from South Carolina, 
*' a mere tinkling bell to bring together a rabble of ideas which overwhelm all 
reasoning." 

One of the strongest objections I have had to the course of the present Ad- 
ministration has been its constant ell'ort to array the diftereut portions of society 
against eacli otiier, and its habit of appealing for support to the worst passions 
and prejudices of our nature. When I heard the distinguished Senator from 
Virginia (Mr. Rives) a fe^v days since, in the debate on the Treasury circular, 
declare that he did not belong to that class of politicians who divided society 
norizontally, but rather perpendiculaily, into classes who mutually sustained 
and supported each other, I thought I perceived the dawn of a better state of 
tilings, and 1 felt grateful to him, sir, for the sentiment; but alas! sir, i fear it 
was but a temporary impulse of sound feeling, that must subside before the poli- 
cy of the party. 

To test the soundness of this opinion, let us for a moment consider the na- 
ture of this Government. It is emphatically a Government as contradistin- 
guished from a Confederacy, limited in its powers, though supreme within its 
sphere; the legislative powers being vested in a Congress, composed of the Sen- 
ate and House of Representatives. The People, being tlie source of all power, 
elect, either immediately or mediately, their representatives; immediately in the 
instance of the House of Representatives, mediately in the instance of the Sen- 
ate. Weaieall, sir, the representatives of the People, though chosen after a 
difterent manner. I claim, sir, to be not the immediate but the general repre- 
sentative of the State of Virginia, as 1 hold that Senator to be the general rep- 
resentative of Delaware; and I, for one, thank Virginia for having sent so able 
and distinguished a representative of our common interests. The more per- 
manent character of the representation in this body is a check imposed by the 
People themselves on their own action. The whole system is one of checks 
and balances. The two houses of Congress are mutual checks on each other. 
The Senate may fairly be presumed to be the more grave and sedate body, from 
the general fact of possessing less of youth and its attributes, although, sir, lo 
be sure, there are some veterans in the other House, as well as some youthful 
aspirants in this. The ancient Germans, sir, who carried among the nations 
whom they conquered their notions of civil polity, were in the habit of arguing 
every question twice, once at their carousals, probably drunk, and once sober, 
that there might be in their councils a due degree of vivaoity and deliberation. 
The same idea may be supposed to be carried out in our institutions, though the 
requisite attributes may not be insured by the same means. In claiming, sir, for 
this body the attribute of deliberation, I do not mean to say that we are by con- 
tradistinction the sober body. 

The constitution which has established this system of government was the 
peaceable and deliberate work of the People. It was not, sir, the result of ac- 
cident, or of a struggle for political power between dilVerent orders of society. 
To find fault, then, with the Senate, is to impeacli the wisdom and intelligence 
of the People themselves. It is they, who, in adopting the Federal Constitu- 
tion, have said that the Senate shall be organized as we find it, have prescribed 
the mode of its election, and given to it the character of greater permanency. 
But, sir, I ask again, what is the meaning of this sentiment? Are we to be pre- 
pared for reducing the Government to a unit^ as we have been told that the cab- 
inet should be one.^ Is it intended to blot out the component parts of this sys 
tern, and reduce the Government to the simple relation of the President and the 
People? In the message of 1832, the Supreme Court was assailed, and its au- 
thority as the interpreter of the Constitution denied. and now,s.r, we arc told by 
the Senator from Missouri, that the President has corrected and repealed 



14 

the decision of that court in relation to tlic constitutionality of the Bank of the 
United States, and that, in his opinion, all that remains to be done is to issue an 
audita querella to ascertain the fact, have it entered on the record, and the judg- 
ment reversed. Here is at once a new attribute of power, and a most extraor- 
dinary mode of proceeding. On the other hand, we are told by the Senator 
from Virginia that the Senate is the citadel of that aristocratic spirit which 
seeks to ride on the necks of the People. If the Senator merely means that this 
language is descriptive of himself and his friends, be it so. I cannot quarrel 
with what he may deem just and proper, as to them, though I should have been 
backward myself in so characterising them; but, sir, 1 utterly deny its justice 
and propriety as applicable to myself, or those with whom I have the honor and 
the happiness to act. In relation to this Government, I and my immediate 
constituents, and I believe a great majority of the American People, are con- 
servatives. We go for the Government as it is. We wish to preserve the 
system ot Federal tinA State Governments as it was established by the wisdom 
of our ancestors '^'"SVe ask no change, and least of a'l, such change as they 
would bring us.'' In this system we live, and move, and have our being; and 
as we were the first to adopt the Constitution, we shall be the last to abandon it. 
We have heard much about the policy of the Executive, and have even been ad- 
vised to look to that source for the initiative of certain measures. To my mind, 
all this is apiece with that exaggerated and false conception of Executive pow- 
er and consequence, which has characteriz.ed the present Chief Magistrate and 
his advisers. The executive power which represents the common force of soci- 
ety is, in every just theory, and in the nature of things, inferior to the legisla- 
tive power, which is the representative of the common intelligence and the com- 
mon will, and that too, precisely in the degree in which brute force is inferior 
to reason. It is the business of the President to execute the laws, not to make 
them. The policy ofthe Executivel Who charged the President with the caie 
of the o-eneral welfaie? What business has he with any policy distinct from the 
])olicy of the law.? The prosperity of a great and civilized People depends on 
the laws, and not on the will of the Executive. Sir, I regret to hear .sucii opin- 
ions expressed. I trust in God they will not prevail in this country; for, to my 
mind, they are in direct hostility with that tone of m.inly and isidepeadent feel- 
in"- which should cl'iaracterlze a nation of freemen. 

In opening the subject of this expunging resolution, the Senator from Mis- 
souri, (Mr. Benton) has seen fit to entertain us with a magnificent eulogy on 
the merits of the President. This, no doubt, was a very fit introduction to the 
measure which is proposed, and may perhaps serve to indicate its ullin)ale aim 
and purpose. He h;is been described at one time as teaching the saucy Briton.s 
a lesson of humility from behind the cotton bags of New Orleans, and at ano- 
ther rebuking with the thunder of American cannon the savages ofthe Pacific 
Ocean, "bestriding the narrow world like a CoU)Ssus." Not content with this 
plenitude of military fame, lie has been endued with all civic virtues and super- 
human sagacity. While listening to this strain of adulation, every sober-mind- 
ed individual must have involuntartly exclaimed with Cassius, 

" Now in the names of all the gods at once, 
Upon what meat dolh this our t'le^-ar feed, 
That he has grown so great?" 

Sir, I am not disposed to deny his real merits, or to withhold my gratitude for 
his real services. He has, sir, rendered good service to his country, and well 
has that country repaid him for it. But that service was in a military, not in a 
civil capacity. 

Mucii has, as usual, been said about the People, and the People's friends, and 



15 

an impression is attempted to be given that those who support this Administra- 
tion are alone the friends of the People, Wlio are tliey that thus arrogantly 
talk about the People as if they belonged to some superior order? The People's 
friends, indeed! The People, sir, stand in need of no friends; they are the sov- 
ereigns, it is they who dispense their smiles and their favors; and it would be 
much more becoming and seemly to speak of the People as being one's friend 
than of oneself as being the friend of the People. There is, to be sure, one 
point of view in which the supporters of this administration, I mean those in of- 
tice, may be considered the Iriends of the People. It is the same in which the 
Licentiate, in Gil Bias, istermei' and considered himself the friend of the poor, 
and who proved his friendship by consuming their revenues. 

The aid of public opinion has been invoked in relation to this measure, and 
we are told by the Senator from Missouri that the People have rendered their 
verdict, and he demands judgment and execution. When and how, sir, was 
the issue made up.^ The resolution of March, 1834, was adopted after the last 
Presidential electionj but this notion of a verdict is gathered from the fact of the 
continued ascendency of the party and the resolves of some State Legislatures. 
Can any thing be more preposterous than the assumption, that a majority of the 
People, liking the man, in yielding to him their support, are to Je understood as 
approving of every thing that he says and does, and disapproving of every thing 
that is said or done against him? As well might it be contended, on the same 
ground, that because General Jackson smokes a pipe, the verdict of the People 
has escablished that it is right and proper to use tobacco, and that the legitimate 
mode ofdoing so, is by smoking it in an earthen pipe. 

But all this, sir, is apart from the main question. We are called upon to ex- 
punge a resolution from our journal, to suppress the evidence of a fact, to fal- 
sify a record! If the right to do so were a matter of doubt merely, it would be 
the part of a prudent and conscientious man to pause. Let not, I pray, sir. the 
excitement of party spirit hurry this body to an act which is a clear infraction of 
the Constitution; be satisfied with a counter-resolution, expressing in as strong 
terms as you please your approbation of the President's conduct, and your re- 
pugnance to the resolution of the 28th of March, 1834, but do not let us inflict 
another wound upon the great charter of our Union. Rely upon it, sir, that if 
the frenzy of party spirit, or an^ other motive, shall lead you to do this deed, 
you will find yourselves in the condition of a homicide, who having exhausted 
his malice in a'deed of violence, recoils with horror and remorse from the victim 
of his passion. 




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